Judge: Guilty, but not guilty

“So spake the Fiend, and with necessity, The tyrant’s plea, excused his devilish deed.”

— John Milton, Paradise Lost

“In law, what plea so tainted and corrupt But being season’d with a gracious voice

Obscures the show of evil?

— William Shakespeare, The Merchant of Venice

Nearly two decades ago, when I was working as an Assistant Prosecuting Attorney, I was assigned to a case in which a recent prison parolee was accused of sexually assaulting the kindhearted woman who agreed to take him into her home after his release from the penitentiary. He had significant mental health problems and they became quite evident when he appeared, via video hook-up from the jail, for his arraignment in the Delaware Municipal Court.

Though his offense was a felony, he had not yet been indicted by a Grand Jury for his crime. He had, at that point, only been charged by a law enforcement agency, a procedure that was necessary in order to ask that he be held in the county jail while his case proceeded further.

The Municipal Court needed to conduct a hearing, set a bond, arrange for the appointment of counsel in his case and set a date for a preliminary hearing.

The Magistrate reviewed the charge with the Defendant. He explained what the accusation was, what the penalties for the offense were and what the Defendant’s rights were.

As the Magistrate continued to talk, the Defendant became more and more agitated. At the point where most criminal defendants would have uttered the nearly universal initial plea — “Not guilty, your honor,” the Defendant instead indicated that he wanted to plead guilty to the charge.

The Magistrate calmly explained to the Defendant that he did not yet have an attorney.

He calmly explained that the Defendant had not yet seen any of the evidence against him. He calmly explained that even if the Defendant had committed an offense, the offense charged might not be the right one to fit the crime and that an attorney could review that for him.

Growing ever more exasperated, the Defendant finally screamed through the television monitor, “But I’m guilty you honor, I’m guilty!” I moved across the room and quietly whispered to the bailiff, “I’m going to need a copy of the video of this arraignment, please.”

The Defendant’s actions in that arraignment were highly unusual. An initial plea of not guilty is nearly universal in felony level criminal cases. This is true regardless of the nature of the evidence. Crime caught on tape? Recorded confession? Dozens of witnesses to the crime?

The defendant is still likely to plead not guilty.

But why? These defendants are not delusional. They do not have situational amnesia. In the vast majority of cases, they know that they have done wrong and are not intentionally trying to put the victim’s family through additional pain or anguish. The reason for their not guilty plea has for more to do with the manner in which our criminal justice system proceeds through the early stages of a case.

When a defendant appears for his arraignment — his initial hearing, he usually has either had no access to the police reports and other investigative information in a case or is just receiving it for the first time at that hearing. In most cases he has just met with his attorney for the first time and his attorney, not having had time to become familiar with the evidence, has not spoken in any level of detail with the prosecutor about how the case might be resolved. Thus, even if the defendant knows that he is guilty of something, he is only very rarely in a position at that early stage of the case to irreparably waive his rights and plead guilty. But the defendant’s only other option is to plead “not guilty.” There is no, “I’m guilty of something but I need a few weeks to figure out what” plea.

These are not minor distinctions. Suppose that a person shoplifts a candy bar from a convenience store. That act is a misdemeanor offense with a maximum jail term of 180 days.

Now suppose that on the way out of the store the person is confronted by a store clerk and pushes past them to get out of the store, knocking them down. If the push causes physical harm to the clerk, then the offense is a robbery, a felony of the second degree, and punishable by up to eight years in prison. Whether physical harm was caused may simply not be known at the time of the arraignment and even if it is, a lay person cannot be expected to know that the push could be the difference between six months and eight years.

Following an arraignment, the next hearing, usually a pre-trial conference, is generally held within a few weeks of arraignment and the vast majority of cases (more than 90 percent nationwide) end with the defendant entering a guilty plea, either to the original charge or to something related to it. Thus, while a person may plead “not guilty” because they have been wrongfully accused, even in cases where the “not guilty” plea may seems like a shocking denial by an obviously guilty person, it is, more likely, simply the initial triggering event in the criminal process.